Associated Gen. Contractors of America, etc. v. Cal. Dept. of Transportation, 713 F.3d 1187 (9th Cir. 2013)

The California Dept. of Transportation has found a way to avoid Prop. 209. The Dept. filed for a federal grant that is unambiguously affirmative action.  The grant requires the Dept. to hire specifc race and gender – specific based preferences in the transportation contracting business.  The Secretary of Transportation must distribute 10 % of the funds to “disadvantaged  business enterprises.”

AGC challenged the federal act on Equal Protaection grounds. According to the 9th Circuit, AGC must have standing to challenge this grant but the plaintiffs could not provide evidence that any of their members had been injured.  This statement is absurd.  By carving out specific groups for racial and gender preference the grant forecloses anyone else from particiating in bids on contracts.  This judicial maxim is incomprehensible.

In order to pass the  strict scrutiny test of the Fourteenth Amendment the applicant must establish evidence of impermissible discrimination.  The Dept. expended tax money to conduct a test (that could have been used for other projects) evidencing discrimination. Of course the taxpayer lost.  The court also agreed with the anecdotal evidence supplied by the Dept.

All of AGC’s objections were summarily disposed of by a court determined to undermine California law. Maybe the Supreme Court will reach a different conclusion in the absence of a rehearing in the 9th Circuit.

Diaz v. Brewer, 676 F.3d 823 (9th Cir. (2012)

Again rejecting voters and state legislatures, a 9th Circuit panel has continued its imposition of public policy  instead of legal analysis.  In addition, the court has constitutionalized Initiatives and legislation by applying the unbounded limits of “equal protection,” “liberty interests” and “due process” foreclosing the opportunity for any further democratic input or correction. Only a short time ago a 9th Circuit panel rejected California voters, and the California Supreme Court in Perry v. Brown, 2012 WL 372713 (C.A. 9 2012), by disallowing state law prohibiting same sex marriage in an opinion emphasizing sociology rather than law. The 9th Circuit panel in Diaz v. Brewer prohibited Arizona from implementing savings to its budget crisis by ruling its legislation discriminates against same sex couples; Diaz v. Brewer, 656 F.3d 1000 (9th Cir. 2012. Rehearing denied. En banc denied.

The only issue in the case: legislation reducing health care benefits to all state employees whether married or unmarried.  All employees, without exception, took a deduction in health benefits in an attempt by the state legislature to produce a balanced budget.  According to the 9th Circuit panel, this legislation included unmarried domestic partners, therefore the legislation discriminated against them-despite the fact only a tiny percentage would be affected.  Why?  Because under Arizona law, same sex marriage is disallowed. 

The dissenting judges in Diaz, lamenting the failure of 9th Circuit judges to order an en banc hearing, comment on the omission of the three judge panel to use the equal protection analysis necessary to invalidate state law, i.e., a specific intent to discriminate.  Aside from the fact that Arizona legislation manifests no intent to discriminate in a budget, and there is no rational basis for challenging the law, and impliedly rejecting the constitutional basis for opposite sex marriage, the opinion is another sociology lesson.

The 9th Circuit has already achieved another record of reversals during the current Supreme Court term, and this case should be added to the list.

Rodriguez v. Maricopa Comm.Coll. Dist., 605 F.3d 703 (9th Cir. 2010)

“Political correctness” continues to thrive, particularly in the academic community. A professor of Maricopa Community College sent several emails through the faculty mail service commenting on the superiority of Western civilization and decrying the emergence of a nation of two people. Other messages were similarly empathic in its criticism of non white cultures. The emails were received by district employees but not students. Eventually, critics of these messages complained to the chancellor and administrative staff. To their credit, they refused to stifle the mail although they reminded students and faculty of the importance of respect for opposing views.
Most cases in state and federal court involve dissenters of the status quo, government in general and law enforcement in particular. The courts have forcefully protected the right of citizens to criticize public and private entities despite their distasteful ideas. In the case of Rodriguez v. Maricopa Co. Community College School District et al the dissatisfied students sued the college alleging the emails caused workplace harassment and employment discrimination under the Equal Protection Clause and Title VII. The District Court somehow certified a class action (consolidation would have been sufficient) and refused to grant qualified immunity to the administration.
That a district court judge would issue an order to certify a class and simultaneously deny immunity to staff who understood the meaning of the First Amendment is incredulous. In a well reasoned decision the Ninth Circuit panel reminds readers that in the absence of any workplace harassment or denial of Equal Protection ja cause of action (or claim) is not actionable under the First Amendment. Title VII and the Equal Protection Clause require conduct to justify judicial intervention. To shut down this professor because he espoused “politically incorrect ” views would deny any faculty member from expressing opposite views. The Equal Protection Clause and Title VII require “conduct.” The First Amendment prohibits “viewpoint discrimination,” the consequence in this case of preferring some other message than that of the professor.
Many people would like to suppress speech they dislike. Absent a threat, or slander, or conduct causing an unlawful assembly, democracy requires tolerance of disparate views. Apparently the Maricopa staff understood this concept and it refused to verbally strangle or impose administrative punishment. The Ninth Circuit agreed and reversed the District Court judge.
Lopez v. Candaele, 2101 WL 5128266 (C.A. 9)
In the Rodriguez case the voices attempted to stifle a professor who expressed views distasteful to some students, but in Lopez the professor attempted a similar result with a student. Johnathan Lopez was a student at Los Angeles City College enrolled in a class taught by a professor Matteson. The professor assigned a writing project to his class, and Lopez wrote an essay criticizing homosexuals. Matteson read the essay in the class and called Lopez a “Fascist bastard,” refused to allow Lopez to finish his speech, and asked anyone who was offended to leave the class. No one did.
Matteson spoke to Lopez and told him to “ask God what his grade was.”Lopez contacted school officials who required him to submit his complaint in writing. Matteson told Lopez of his intent to expel him.
The administration, again to their credit, although in response to letters from counsel for Lopez, undertook an investigation of the case and intimated Matteson’s conduct would be evaluated. Lopez filed a lawsuit under Title VII alleging violation of his First Amendment rights.
The Ninth Circuit panel held Lopez lacked “standing” although two lesbians offended by the Boy Scouts use of public land (which they leased), and some wilderness person whose view of the park was obstructed by a Park Service proposed land improvement, had “standing.”
That a publicly paid teacher would intimidate a Community College student in front of his classmates is inexcusable. This conduct, accompanied by numerous reports reflecting the voter registration of college professors, and the refusal of UCLA to allow tapes of their lectures, confirms the ideological spectrum on college campuses.